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New Mexico Regulation & Licensing Department v. Lujan3/17/1999
should have affirmed the SPB's decision and its adoption of the temporary hearing officer's findings of fact and Conclusions of law. Our scope of review in reviewing appeals under the Personnel Act, NMSA 1978, §§ 10-9-1 to -25 (1961) (amended 1998) is identical to that of the district court. See Gallegos v. New Mexico State Corrections Dep't, 115 N.M. 797, 800, 858 P.2d 1276, 1279 (Ct. App. 1992). Section 10-9-18(G) requires the district court to "affirm the decision of the unless the decision is found to be: (1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence; or (3) otherwise not in accordance with law." NMSA 1978, § 10-9-18(G) (1980) (amended 1998).
{8} An arbitrary and capricious action consists of conduct or a ruling that is unreasonable or does not have a rational basis. See Perkins v. Department of Human Servs., 106 N.M. 651, 655, 748 P.2d 24, 28 (Ct. App. 1987). An abuse of discretion occurs when the administrative agency has not acted in a manner required by the law. See id. Even if another Conclusion may be reached or where there is room for two opinions, the action is not arbitrary or capricious if it was made after due consideration. See id. Whether the SPB's decision was supported by substantial evidence entails considering all of the evidence, both favorable and unfavorable to the SPB's decision, and deciding whether its decision was supported by the evidence. See id. Last, an agency's decision is not in accordance with the law if the decision or action taken by the agency was based on an error of law. See id. at 656, 748 P.2d at 29. "Whether a ruling or decision of an administrative agency is `not in accordance with law' is a question of law to be decided by the court." Id.
DISCUSSION
{9} We begin our Discussion with Employee's cross-appeal. We do so because the determination of this issue is a necessary step in addressing the Department's appeal. Employee asserts that he is an employee of NMREC and not the Department, and therefore the Department had no authority to terminate his employment. As the Department correctly asserts, however, Employee is employed by the Department because NMREC falls under the auspice of the Department. Stated alternatively, NMREC is a division of the Department.
{10} The Department was created in 1983 by the Legislature. See 1983 N.M. Laws, Ch. 297, §§ 17-29. Included in the Act creating the Department was a temporary provision that provided that " he control of the professional and occupational licensing functions of the executive branch of state government may be consolidated [by the Governor] under the supervision of the regulation and licensing department upon executive order[.]" NMSA 1978, § 9-1-13 (1983). The stated purpose of this temporary provision was to consolidate the administration, operations, and services of these administrative agencies. This provision has been codified by Section 9-1-13. In response to this provision, Governor Anaya issued Executive Order number 86-10 to "streamline and maximize the efficiency of state agencies." In this order, he consolidated several professional boards, including NMREC, under the supervision of the Department. See Executive Order No. 86-10 (April 24, 1986).
{11} Employee argues that this is repeal by implication of one statute by another and that this practice is disfavored. See State ex rel. Quintana v. Schnedar, 115 N.M. 573, 575, 855 P.2d 562, 564 (1993); Hahn v. Sorgen, 50 N.M. 83, 89, 171 P.2d 308, 311-12 (1946). Employee asserts that should the Legislature want to place NMREC under the control of the Department, they would have to do so expressly by revoking prior statutory law and enacting
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